May 12, 2006

The May 5th Transcript

[UPDATE: Starting on p. 22, Fitzgerald makes some deliberately vague comments suggesting that someone has a cooperation agreement, or a criminal problem of some sort. Excerpt at the bottom].

My particular focus - how accurate were David Shuster and Keith Olbermann of MSNBC when Olbermann told us that Libby had been "warned about the implication of outing Valerie Plame's
name"? The more plausible alternative version put out by the AP was that Libby had been advised to stop with the NIE leaks.

I'll be back...

MORE: Yike - a HUGE Shuster rally on p. 20:

FITZGERALD: ...So the issue of potential damage from discussing it may come up. In a different conversation that Mr. Libby was present for, a witness did describe to Mr. Libby and another person the damage that can be caused specifically by the outing of Ms. Wilson. It was before the grand jury. It was back in July of 2003.

Puzzling - the speaker is Fitzgerald, even though Olbermann says the revelation came from the defense. Since part of my objection was based on the oddity of the defense throwing their own guy under the train, I am feeling partly vindicated. Partly.

And this, from p. 35 where the authorization of the disclosure of parts of the NIE is under discussion, may have been conflated with the earlier bit:

MR. WELLS: Just so the record is clear what the grand jury testimony is. He said that the disclosure of the material was a go, then it was a stop and then it was a go. Then he is asked at some point was it possible that you went too fast. He says I could have made a mistake but I know I was supposed to go, then I was told to stop, and then I was told to go.

Since Shuster has pretty deliberately muddled the NIE leak with the Plame leak before, maybe he was (by over-excitement or design) doing it again.

Let's rely on the transcript and hand out awards: it appears that the AP was right - Libby got a stop-go-stop on the NIE leak; I was right, partly - Libby's lawyers did not throw him under the bus on the Plame leak; and Shuster was right, a bit - Fitzgerald, not the defense, said that Libby had been warned about the consequences of a Plame leak. Of course, "the consequences" may have been political embarrassment for picking on the little lady, rather than the outing of a classified CIA agent - lacking context, who knows?

However, per a defense filing we know that Libby has testified that he did not know Plame was classifed, and we don't see a perjury indictment on that seemingly significant point, so presumably Fitzgerald can't prove that to be a lie.

STILL PICKING THROUGH:

THE INR REPORT: Libby never saw the INR report? Check this from page 6 of the .pdf:

FITZGERALD: ...We are not going to dispute the substance. We will dispute that he did talk to people about Wilson's wife and the relevance will be the conversations, for example, the best one is Mr. Grossman when Mr. Libby asks him what he knows about the trip. Mr. Grossman didn't know about the trip either. He found out and came back and said, my understanding is that his wife works at the CIA and people are saying she was involved in sending him on the trip which is what he tells Mr. Libby which goes directly to the relevance of whether or not Mr. Libby's testimony is true.

Mr. Grossman separately has a report prepared all about the trip and the substance of it the so-called INR report which Mr. Libby never sees. We don't intend to offer the INR report. We produce it in discovery. But we are not going down the road of trying the case of whether or not Mr. Wilson is right or Mr. Libby is right or whose view of this.

Hmm. Grossman in the tank for Wilson?:

MR. WELLS: Now let's return to Mr. Grossman. Mr. Grossman is going to take the stand and he's going to say this is what I did. I asked for a report to be prepared. I met with Mr. Libby and I told him certain things.

Now let's assume I want to show this jury that Mr. Grossman is not being totally truthful, that I want to show, for example, that Mr. Grossman went to college with Mr. Wilson and they were classmates and throughout their careers they traveled together through the State Department and the diplomatic arena from college right on through.

I want to give you a sample of just two emails that are classified so you will see the importance of these documents for purposes of discovery and how they may permit me to materially advance my examination of Mr. Grossman and to try to show that he is not being totally candid and that there are19 relationships that should cause the jurors to doubt what he said to Mr. Libby, when he said it.

OK, I'll bite - *IF* Grossman and Wilson were buddies, why didn't Grossman know about Valerie's status, and why did he blab about it to Libby (Jason Leopold says it was in a meeting with "at least half a dozen" other witnesses)

Libby's answer - Wilson and Grossman *are* buddies, and Grossman did not mention Plame at all in the meeting.

P. 13 has some hints about the Libby-Fleischer talk:

Fitzgerald: ...But it is precisely what that article is that causes the events of June 14 [sic - should be JULY 14]. On July 6 the article is printed. On July 7 in response to that, the office of vice president sends some talking points to Mr. Fleischer about the vice president didn't know about this trip before. In response to that, Mr. Libby and Mr. Fleischer have lunch and that's when we allege the discussion about Wilson's wife was. It is responding to the criticism that resulted from the Wilson article that led to the events of July 6 to July 14 when most of the relevant events in this indictment took place.

In fact, we will offer an article that was sort of annotated by people who read it. And so my point being but it is not offered to prove the truth of the matter asserted. We can talk about redactions or instructions but that's what Mr. Libby discusses. He says his article implies that we would have known about it but he didn't. And we're not going to dispute the fact in 2002 neither Mr. Libby nor the vice president knew about it. That's my point. That's why we plead in the indictment that the trip was done at the CIA's behest and they reported to the CIA. So when Mr. Wilson's says, I assume the vice president heard about it back then, we disagree. We agree with Mr. Wells he didn't.

So, the OVP was not aware of the Wilson report? That might spark a long afternoon for Jeff. And what article was annoted? The Pincus June 12 piece is an obvious guess, but Pincus had a follow-up to that as well.

INDICTMENT DO-OVER: This is pretty funny - after listening to several defense objections about assertions made in the indictment that Firzgerald is not inclined to support, the judge offers this reassurance to the defense:

THE COURT: Let me just make one thing clear. The indictment is not going to go to the jury. They are not going to have it.

Oh, well then. Maybe the prosecutor could deliver a new indictment so we could figure out what we are talking about, then.

And finally Fitzgerald throws the same cold water we do on a lefty talking point. The subject is paragraph 13 of the indictment:

13. Shortly after publication of the article in The New Republic, LIBBY
spoke by telephone with his then Principal Deputy and discussed the
article. That official asked LIBBY whether information about Wilson's
trip could be shared with the press to rebut the allegations that the
Vice President had sent Wilson. LIBBY responded that there would be
complications at the CIA in disclosing that information publicly, and
that he could not discuss the matter on a non-secure telephone line.

From the transcript, Fitzgerald delivers the righty rebuttal:

FITZGERALD: ...I agree with Mr. Wells the New Republic article does not discuss the wife. There is an ambiguity about what Mr. Libby and this person are discussing on the phone afterward as to what the complication is.

A RAP SHEET? This will set hearts fluttering (starting on p. 22):

MR. WELLS: Your Honor, could you ask Mr. Fitzgerald if he is saying with respect to a particular individual who is the subject of a sealed affidavit by me, is he saying he's given us everything concerning that individual's conversations with the press?

THE COURT: I don't know what individual you are talking about and I'm not asking counsel to reveal that since it is under seal but --

MR. FITZGERALD: I'm not revealing Jencks Act material or Giglio material so let me take a case removed from this case so I could just be vaguer. If there were a person with a cooperation agreement or impeachment material and had a long rap sheet with six arrests and they gave a 302 for an FBI interview and they went in the grand jury, I wouldn't turn that material over now.

But if that same person was someone who had spoken to Mr. Libby, spoken to the press and was being a witness and at the time they wrote down an email that said, just had a meeting with Mr. Libby, sent it off to someone and we looked for the email and we found it and we had it or they wrote a memo to file at a time which was not an FBI interview after the investigation started but a memo to file at the time or handwritten notes and we have that, we've given that over.

We are not sitting on documents or emails or other things calling it Jencks because it was created at the time of the events. We would only sit on Jencks/Giglio.

THE COURT: Mr. Wells, is that --

MR. WELLS: He qualified it by emails that specifically mention Mr. Libby. But we would take the position, Your Honor, that if that particular individual has emails concerning Mrs. Wilson, whether they are sent to Mr. Libby, and if that individual also had discussions with the press as part of how you described the situation, we are to get all of the emails or memos or notes or whatever that that individual has concerning Mrs. Wilson regardless of whether they went to Mr. Libby because it is highly relevant.

THE COURT: You are saying that that would be Giglio, right?

MR. WELLS: No, not necessarily, Your Honor.

THE COURT: It seems to me that would go to the issue of whether they would have some motive to curry favor with the government because they also had revealed information that conceivably they could be charged with.

MR. WELLS: It also could lead to discoverable evidence and for purposes of cross-examination. It wouldn't necessarily mean just Giglio. That's all I'm saying. PerhapsMr. Fitzgerald didn't mean to carve out that piece.

MR. FITZGERALD: It is moot. I agree with Your Honor it would be Giglio. But if we don't have it, where we had it we've given it over. We haven't held back if it's not testimony or not impeachment by a rap sheet or something else.

It's not like we took the emails and said the ones that discussed topics X and Y from July 2003 he gets. The other ones we sit on until later. So it is moot.

THE COURT: Okay. If there are individuals, and again I don't know if anybody fits in this category, who also had discussions with Mr. Libby and had discussions to the pressbut who will not testify, where do those individuals fall? I assume the discovery request would encompass individuals who would fit within that category also. Again I don't know if anybody fits in that category. But if so, what is the government's position about documentation regarding those individuals?

MR. FITZGERALD: Your Honor, let me be general here and I will rethink the remarks. If I need to clarify it, I'll clarify it to you with a copy to counsel. My understanding is in those situations, not saying whether they are singular or plural. I don't want too much read into my words. But we would give over documents reflecting the conversations with Mr. Libby.

We would not be turning over materials if the person is an innocent accused or a subject of an ongoing investigation. We would not be turning over a conversation if there was a document about a conversation with a reporter necessarily as to what they said to the report. But if there is a document that would be relevant to the conversation with Mr. Libby such as an email saying I just spoke to Libby or even a calendar entry saying that they meet with Libby, that sort of thing was turned over.

My "Blink" reaction - We are talking abut Ari Fleischer, who was mentioned as a possible "curry favor" candidate in an earlier defense filing, I think. Well, I expect plenty of theories will be aired, and I am by no means wedded to this one. [Hey, the Blink may have worked - Fleischer was the subject of a sealed affidavit.]

FINAL GROAN: Among his closing thoughts, the judge worries that the trial will take a month, so some sort of a screening technique must be uesed to find jurors who can be available for that time period. And here is the groan:

I guess one of the concerns I have about written questionnaires is that I think it disadvantages those people who do not read and do that write well, and as a result of that, many times I think those individuals end up being screened out of the process and don't have an opportunity to sit as jurors because they aren't articulate.

Ahh, this may be a complicated case and, as discussed in the hearing, newspaper article may be introduced as evidence - it might be nice to have jurors who can follow along.

I have been advised that I come up aces on my guess that the Libby warning to which Fitzgerald referred came *after* the publication of the Novak column. There is a lesson there - never underestimate the power of wishful thinking.

Comments

Foo Bar, you really ought to mention that the aluminum tubes debacle was yet another milestone on the CIA's nearly perfect loosing streak. Now that the Iraqis have weighed in (or at least their documents) it turns out that the 50,000 tubes were for centrifuges after all...

Foo Bar, you really ought to mention that the aluminum tubes debacle was yet another milestone on the CIA's nearly perfect loosing streak. Now that the Iraqis have weighed in (or at least their documents) it turns out that the 50,000 tubes were for centrifuges after all...

Pretty expensive soda cans, at $105 per tube... (Well, you know how competitive some people ca be -- maybe Saddam was going to run a Pepsi Challenge and he needed replacement cans to hide the brands. Sure, he could have covered the cans with heavy paper, but some people just don't do things on the cheap...)

the aluminum tubes debacle was yet another milestone on the CIA's nearly perfect loosing streak

Cathy,

First of all, given that the CIA stood by the tubes as evidence of reconstitution when it counted (in the NIE, before the AUMF vote), if it turned out now that they really were for centrifuges, that would be a vindication of the CIA (and a "loss" for DOE), would it not?

I'm sure you have your theories for why that FreeRepublic revelation has not been picked up by the evil MSM, but if it really were good evidence that the tubes were for centrifuges, wouldn't this at least represent a coup for Hoekstra that he would want to boast about? (Hoekstra pushed the idea of releasing all those docs to bloggers). Wouldn't he be touting this find? Maybe he is and I just can't find any evidence of it; if so, please pass it along.

Here's another idea: maybe you try to get TM to do a blog post on that FreeRepublic link. Trust me, he is not averse to promoting something from the comments to a main post when he finds it of interest. Who knows? Maybe he'll find that link interesting.

The CIA portions of the 911 report alone enumerate links (such as agreement not to target Iraqi interests and offers of safe haven) that can't be described as "tenuous" or "inconsequential."

Well, however you want to characterize the CIA's assessment of Iraq-Al Qaeda ties, it certainly was not passively accepted by the administration. Quite the contrary, in fact. Rumsfeld and company set up an entire team to sift through and reinterpret the intelligence community's data regarding Iraq's links to terrorism. Almost as importantly, they made sure that this effort was publicly known, so that the message got out that they did not think the CIA's conclusions on this question were worthy of respect. This, despite what you said earlier:

In those cases, the CIA is supposed to report the sense of the community (i.e., the main findings on the NIE). Saying policy makers should disregard the CIA's product in favor of their own preferred source isn't very persuasive.

So policy makers should not disregard the CIA's product, then, right? I guess policy makers certainly shouldn't set up their own team that's free to reach their own conclusions, right? The CIA's summary of the sense of the community is the final word, right? Does that rule always apply, or does it only apply when the CIA's summary is sufficiently supportive of the case for war?

I don't see how you can read the NIE and come up with any conclusion other than it supported the case for war. (Yes, even the tubes part.)

Read uncritically, it certainly made a decent case for the presence of WMD programs, and I will grant that the decision about invasion was a tough call, and deciding to invade was not an outrageous decision given the NIE.

Let's stipulate that the NIE did support the case for war, on the balance (or , at the very least, this was something about which reasonable minds could disagree). That said, you can't read the section in the SSCI report about the discrepancies between the classified and declassified NIEs [p295 and p296] and not conclude that the case was far from a "slam dunk". The main conclusion in that section is that the elimination of caveats in the declassified version misrepresented to the public the judgments of the intelligence community. Unless that means the declassified version conveyed 100% confidence and the classified version only 99%, you'd have to concede that the case presented in the classified version was at least a little shaky.

Unless you want to argue that the administration's public statements were less alarmist and more caveated than the declassified NIE (I think it's clear the opposite is true), then it seems to me that the administration's public statements also misrepresented the judgments of the intelligence community. And I suppose you might say that Bush, Rice, etc. were not cleared to reveal the caveats, but as we've learned recently, the President can declassify anything anytime he wants, right? So if he wanted to make sure the country got an accurate sense of the reliability of the intelligence, he had the freedom to do it.

All this boils down to is that you wanted absolute proof before going to war. The intelligence was opinions. Not true. Not false. The caveats were opinions as well.

If one expects certainty, one will never go to war which is, I suppose, your reason for pushing it.

As I see it the American people were okay with getting rid of Saddam. We didn't need all the i's dotted and t's crossed. On 9/13/01 a poll done by the WaPo had more than 70% of the public believing Saddam had something to do with 9/11....long before Bush started his push to depose him.

We have known for a very long time that Saddam was a danger to us. Couple that with his comfort with Islamic terror and after 9/11 it WAS A SLAM DUNK that we would take him down.

We didn't need the UN. And it was for the UN that Powell made his WMD show. The American people didn't need that show to convince them.

All that was long ago and no purpose is served by arguing with us. What do you hope to get out of this? Pushing Bush's numbers down to the low thirties?

Believe me if the Bush Lied crap hadn't started, this country might have had a REAL discussion about it. Now it's pointless.

I, personally, didn't believe the nuclear stuff. I still wanted Saddam out of there. I have no regrets.

Quite the contrary, in fact. Rumsfeld and company set up an entire team to sift through and reinterpret the intelligence community's data regarding Iraq's links to terrorism.

Ah, more of the anonymous officials cited as fact. The links cited came from CIA estimates. (The source for the most pertinent of which, claims of chem/bio training, recanted in early 2004.) Pretending the "team" set up a "stovepipe" is remarkably similar to another assertion that is handily disproven by a casual read of the NIE.

Read uncritically, it certainly made a decent case for the presence of WMD programs . . .
No kidding. And no matter how critically you read, that's obviously the point of the whole document, as the first line makes abundantly clear:

We judge that Iraq has continued its weapons of mass destruction (WMD) programs in defiance of UN resolutions and restrictions.

The main conclusion in that section is that the elimination of caveats in the declassified version . . .

Sorry FB, but this is just silly. The caveats were eliminated from the declassified version because they were classified. Ditto for much of the supporting information. Expecting the CIA to run down its sources and grade the reliability of each is ridiculous, and nobody with a room-temperature IQ expected it. What we did expect was that the "key judgments" labeled "high confidence" would be accurate. They weren't. You can blame that on the Administration in the sense that they're ultimately responsible, but pretending they "twisted" the product that so self-evidently makes precisely the same case they did borders on the absurd.

All this boils down to is that you wanted absolute proof before going to war. The intelligence was opinions

If one expects certainty, one will never go to war which is, I suppose, your reason for pushing it.

No, I just wanted an accurate sense of the reliability of the intelligence to be conveyed to the public before we voted on whether to go in there.

I supported the invasion of Afghanistan, and although I wouldn't have done it I think there's a decent chance the Iraq invasion might work out well on the balance in the very long run. But I guess anyone who supported only invading only 1 and not 2 foreign countries within a single presidential term is a clueless hippy peacenik.

Cecil:

Ah, more of the anonymous officials cited as fact.

??? Please have another look at the NYT article about the Office of Special Plans stuff. Wolfowitz is quoted at length and on the record. Here is a choice quote that made clear to the public that he felt that CIA's overall conclusions were not to be trusted on this topic:

He described "a phenomenon in intelligence work, that people who are pursuing a certain hypothesis will see certain facts that others won't, and not see other facts that others will."

The Office of Special Plans is not some sort of lefty myth invented out of whole cloth and devious anonymous quotes. It's on the list of stuff to be investigated in Phase II of the SSCI investigation.

The links cited came from CIA estimates

Actually, that article says they were also sifting through stuff from DIA and other agencies, but even if it was only CIA docs they were looking at, that does not address my point. Your defense of the administration's use of the tubes is as follows, as I understand it: The CIA was responsible for supplying a concise, high-level, bottom-line summary estimate to the Bush administration on intelligence issues, and this is what the administration was supposed to go with (they couldn't be expected even to ask enough questions to figure out that it was 2-2 among all-source analyses with the experts against) . OK, fine. But then the administration should have been happy to accept from the CIA the same kind of concise, high-level, bottom-line summary estimate of the extent of Iraq-Al Qaeda links. They did not. Instead, they felt compelled to rummage through, as Wolfowitz said, "enormous amounts of incredibly valuable data that our many intelligence resources have vacuumed up" and try to determine on their own what those little bits of data meant.

What we did expect was that the "key judgments" labeled "high confidence" would be accurate

Good point! Note that the key judgment from the NIE for which the tubes were relevant (namely, that Iraq would be able to make a weapon by '07 to '09 even without getting fissile material elsewhere) was stated with medium confidence (look at the section on Confidence Levels for Selected Key Judgments). But this turned into the tubes being "only really suited" for centrifuges when Rice went on CNN.

The caveats were eliminated from the declassified version because they were classified

Yes, and the SSCI report makes clear that they should not have been, and that anyone who had access to both the classified and declassified NIEs should have realized (as Bob Graham certainly did at the time) that the intelligence was being misrepresented to the public. So if the White House pushed to have more declassified in the interest of giving the public a full picture but were rebuffed by the CIA, then the White House is excused. To put it mildly, I don't see much evidence that this is how it happened, though.

You mean like this one: "He emphasized, 'They are not making independent intelligence assessments.'"?

The Office of Special Plans is not some sort of lefty myth invented out of whole cloth and devious anonymous quotes.

No. But what you claim they were doing is.

Note that the key judgment from the NIE for which the tubes were relevant . . .

Ah, the tubes. The [high confidence] conclusions about the nuclear weapons programs aren't important, only the [medium confidence] conclusions about the tubes. Silly me.

Yes, and the SSCI report makes clear that they should not have been [classified],

Not sure it does. It says it was misleading to leave them out. Then it has a redacted classified bit right underneath (probably pointing out that's standard practice when declassifying estimates).

and that anyone who had access to both the classified and declassified NIEs should have realized (as Bob Graham certainly did at the time) that the intelligence was being misrepresented to the public.

No kidding. Including great bunches of it that weren't declassified. Again, had the basic conclusions been correct, this would all be irrelevant. The problem is, they weren't. And there was no "twisting" necessary to make them false.